SPRINTING TOWARDS FAMILY HEALTH: FEMALE ATHLETES DEMONSTRATE WHY THE U.S. NEEDS PAID MATERNITY LEAVE.
Runners in a relay race, Brisbane, 24 June 1939 @ State Library of Queensland on Flickr: https://flic.kr/p/GMYJpq
By: Celso Lucas Leite, Jr.*
In 2014, Alysia Montaño ran the 800-meter race at the U.S. Track and Field Championships at 8 ½ months pregnant. Just a few weeks after the race, the five-time national track champion gave birth to her first child. It was not the last time Montaño would run a race while pregnant; in 2017, she again participated in the national championships at 5 months pregnant. While the pregnancies did not seriously curtail her career or harm the health of her family, Montaño pointed out in a New York Times op-ed that other female athletes were forced to choose between motherhood and earning a living. Nike, for example, refused to pay one female athlete until she began racing marathons again. Fortunately, Nike has since changed its maternity leave policy to be more accepting of pregnant athletes. However, Montaño’s story and the situation of other female athletes points to a serious problem in the United States: the lack of national paid maternity leave .
The United States is one of only two countries in the world that do not have paid maternity leave at a national level. Among industrialized nations in particular, the United States especially stands out. The Organization for Economic Co-Operation and Development (“OECD”) is a group of 36 industrialized free-market democracies, of which the United States is a founding member. On average, OECD countries offer 19 weeks of paid leave to women who are going to give birth. The United Kingdom has the most generous policy, offering new mothers 52 weeks of paid leave, while Australia and Portugal, on the other end of the spectrum, offer only 6 weeks of paid leave. After 6 weeks, there is a steep drop off to zero weeks of national paid leave in the United States.
The Family Medical Leave Act of 1993 (“FMLA”) covers maternity leave in the United States. When first introduced in Congress, the act proposed 6 months of unpaid leave for new parents. However, by the time the act was signed by President Clinton, the 6 months of unpaid leave had been cut down to 12 weeks of unpaid leave. The FMLA does not apply to all employees; the act only applies to government and private sector employers with more than 50 employees. Further, employees must work at least 1250 hours within 12 months of when leave starts and have worked within 75 miles of where an employer has more than 50 employees in order to qualify. These restrictions make it difficult for athletes and other non-traditional workers, who may travel frequently or work as independent contractors, to apply even for the most basic unpaid benefits available under the act.
Paid maternity leave promotes positive societal outcomes. First, there are considerable health outcomes for children with mothers that have access to paid maternity leave. Paid leave contributes to lower infant mortality rates, increased child vaccination rates, increased infant access to nursing, and increased infant visits to pediatricians. Mothers with access to paid maternity leave are significantly less likely to suffer from depression. Second, paid maternity leave has significant economic benefits by keeping female participation in the labor force steady. In keeping female participation rates steady, employers – especially athletic employers who invest heavily in the training of their athletes and team dynamics – see less turnover and lower recruiting costs. Lastly, the social impacts of paid maternity leave are extremely impressive: children with mothers that have access to paid maternity leave are more likely to have a higher IQ, more likely to get an education, and more likely to earn a steady income after graduation. If the United States adopts a robust paid maternity leave policy, we can strengthen the outcomes of future generations; making them healthier, more economically independent, and less reliant on future government assistance.
While the United States has a significant distance to run before all female employees across the nation have access to paid maternity leave, it is moving in the right direction. Athletic employers like Nike now offer paid maternity leave to the athletes they sponsor; and female sports leagues like the WNBA have recently begun offering paid maternity leave after collective-bargaining agreements with athletes. Non-athletic employers are also following this trend, and a recent study indicated that 40% of American employers now offer paid maternity leave, up from 25% in 2015. State governments are also working towards greater access to paid maternity leave, and proposals have recently been put forward in New Hampshire, Vermont, and Nebraska. Ultimately, nation-wide paid maternity leave may come from state governments and private employers, rather than from a logjammed federal government; that is perfectly fine, so long as the United States begins to take the critical steps necessary to safeguard the well-being of working mothers and their newborns.
*Staff Writer, Jeffrey S. Moorad Sports Law Journal, J.D. Candidate, May 2021, Villanova University Charles Widger School of Law
 See ABC News, Runner, 8.5 Months Pregnant, Completes 800-Meter Race, ABC News (June 27, 2014), https://abcnews.go.com/blogs/health/2014/06/27/pregnant-runner-competes-in-800-meter-race/ (reporting Montaño’s doctor and midwife explained no risk in racing while pregnant).
 See Suzan Clarke, Athlete Who Raced While Pregnant Gives Birth to Baby Girl, Good Morning America (Aug. 20, 2014), https://www.goodmorningamerica.com/news/story/athlete-raced-pregnant-birth-baby-girl-25046098 (noting Montaño gave birth to a healthy baby girl named Alysia).
 See Katie Kindelan, Nike to change pregnancy policy in athlete contracts after backlash, ABC News (May 20, 2019), https://abcnews.go.com/GMA/Wellness/nike-change-pregnancy-policy-athlete-contracts-backlash/story?id=63147457 (indicating race occurred while she was 5 months pregnant with her second child).
 See Alysia Montaño, Nike Told Me to Dream Crazy, Until I Wanted a Baby, N.Y. Times (May 12, 2019), https://www.nytimes.com/2019/05/12/opinion/nike-maternity-leave.html (explaining female athletes are “often the breadwinners in their families” and are required to sign exclusive sponsorship contracts with companies to provide a steady stream of income, but no competition means no payment).
See id. (explaining Olympic runner Kara Goucher had to choose between running 120 miles a week and pregnancy; and later had to chose between running and taking care of a sick child; further explaining another female athlete stated she would never tell Nike she was pregnant for fear of Nike reducing her pay or releasing her from her contract).
 See id. (reporting Nike changed its maternity policy after significant pubic outcry and a congressional inquiry).
 For a further discussion of the negative impacts of the lack of nationally available maternity leave in the United States, see infra notes 20-26 and accompanying text.
 See The Economist Staff, America is the only rich country without a law on paid leave for new parents, Economist (July 18, 2019), https://www.economist.com/united-states/2019/07/18/america-is-the-only-rich-country-without-a-law-on-paid-leave-for-new-parents (stating only other nation lacking nationally supported paid maternity leave is Papua New Guinea).
 For a further discussion comparing the United States to other industrialized countries, see infra notes 10-13 and accompanying text.
 See U.S. Mission to the OECD, What is the OECD?, U.S. Dep’t of State, https://usoecd.usmission.gov/our-relationship/about-the-oecd/what-is-the-oecd/ (last visited Mar. 20, 2020) (noting OECD member countries “account for 63 percent of world GDP” and work together to promote economic development and reporting all members of OECD are representative democracies).
 See OECD, Length of maternity leave, OECD, https://www.oecd.org/gender/data/length-of-maternity-leave-parental-leave-and-paid-father-specific-leave.htm (last visited Mar. 20, 2020) (stating OECD member average in 2016 to be 19.08 weeks of paid maternity leave; further indicating approximately half of OECD member nations offer between 16 and 20 weeks of paid maternity leave).
 See id. (reporting United Kingdom had most generous leave policy at 52 weeks, followed by Greece at 43 weeks, and Republic of Ireland at 42 weeks; Korea and Mexico offer approximately 12 weeks; and Australia and Portugal each offer 6 weeks).
 See id. (noting United States, at nation-wide level, offers zero weeks of paid maternity leave).
 See Rebecca A. Brusca, A Comprehensive Analysis of the Effects of Paid Parental Leave in the U.S., 19 Duq. Bus. L.J. 75, 79 (2017) (explaining federal maternity leave first established through Pregnancy Discrimination Act; now primarily covered through FMLA of 1993).
 See id. (explaining Congresswoman Patricia Schroder proposed 6 months of unpaid medical leave after consultation with medical experts, but Congress rejected her initial proposals).
 See id. (indicating 12-week maximum leave time was not based on advice of medical and child development experts).
 See FMLA Frequently Asked Questions, U.S. Dep’t of Labor, https://www.dol.gov/agencies/whd/fmla/faq#2 (last visited Mar. 20, 2020) (reporting both state and federal government agencies are covered employers and also private sector employers if they meet minimum employee threshold of at least 20 work weeks each year).
 See id. (stating 1250 hours does not include time spent on vacation, sick leave, or PTO; additionally, employee must have worked for specific employer for at least 12 months).
 See id. (noting specific requirement of traditional employee status; no allowance made for contractor status).
 For a further discussion of the positive impacts of paid maternity leave, see infra notes 21 - 26 and accompanying text.
 See Seth K. Kornfeld, A Need Not Being Met: Providing Paid Family and Medical Leave For All Americans, 56 Fam. Ct. Rev. 165, 171 (2018) (stating “[i]t is evident that paid leave contributes to improved health in newborns and children.”).
 See id. (explaining 2011 study which indicated a 10% decrease in child mortality associated with countries that adopted paid family leave).
 See id. at 172 (recounting study indicating mothers with access to more generous paid family leave 18% less likely to suffer depression after giving birth and explaining positive metal health benefits later in life for women who give birth while also having access to paid family leave; additionally, when paid family leave extended to fathers, infant-father bonding more likely to occur).
 See Brusca, supra note 14 (indicating mothers with access to paid maternity leave, especially low-income mothers, more likely to return to work, work 15-20% more hours, and see a 5% increase in hourly wages).
 See id. (explaining attrition rates higher among female workers without paid maternity leave and some employers would rather pay for maternity leave than go through process of replacing talented employee).
 See id. (explaining positive social outcomes of state-wide paid leave policies).
 See id. (reporting paid maternity leave bolsters stability of next generation workers and their families).
 For a further discussion of how the United States is moving in the right direction, see infra notes 20-26 and accompanying text.
 See Maggie Mertens, Maternity Leave—Not Higher Pay—Is the WNBA’s Real Win, Atlantic (Feb. 1, 2020), https://www.theatlantic.com/culture/archive/2020/02/why-wnbas-new-maternity-leave-policy-revolutionary/605944/ (stating maternity leave part of larger agreement including increasing average annual compensation to $130,000, guaranteed housing, and child-care stipends); see also Kindelan, supra note 3 (reporting Nike changed maternity leave policy after significant backlash from athletes and general public).
 See Mercer, The pressure is on to modernize time-off benefits: 6 survey findings, Mercer (Jan. 16, 2019), https://www.mercer.us/our-thinking/healthcare/the-pressure-is-on-to-modernize-time-off-benefits-6-survey-findings.html (noting “[p]aid parental leave has gone mainstream. About two-fifths of survey respondents now offer paid parental leave for both the birth and non-birth parent, compared to only about a fourth of respondents in our 2015 survey.”).
 See Lisa Nagele-Piazza, Will Paid Family Leave Be Available in More States?, Society for Human Resource Mgmt ( Jan. 24, 2019), https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/will-paid-family-leave-be-available-in-more-states.aspxn (indicating California, New Jersey, Rhode Island, New York, Washington state, and Washington, D.C have differing maternity leave programs).
 For a further discussion of how paid maternity leave produces positive health outcomes for mothers and their newborns, see supra notes 20-26 and accompanying text.